Example Jury Selection Instructions

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Introduction and Selection Process Instructions For Jury Panels

Instructions

NJI Model Jury Instructions, 1.1:

[1] Members of the jury panel, the clerk (or registrar) has just read out the charge. (NOA) has pleaded not guilty.

[2] The lawyers estimate that the trial will take (specify) to complete. This is only an estimate. The trial could actually take more or less time than the lawyers estimate.

[3A] We will now choose (12, 13 or 14) of you as jurors, whose duty will be to consider the evidence and in the end decide whether (NOA) is guilty or not guilty. (We will also choose (one/two) alternate juror(s) in case one or more of the original twelve is unable to act when the trial starts

[3B] A jury trial normally begins with twelve jurors. However, in certain cases, the trial may begin with thirteen or fourteen jurors. Given the anticipated length of the trial, I have decided that it is in the interest of justice to select thirteen/fourteen jurors in this case. This is to ensure that a complete jury is available to deliberate.

All jurors chosen will have the duty to watch and listen to all of the proceedings.

You should be aware, however, that the law allows only twelve to deliberate, and therefore I will have to reduce the jury to twelve before deliberation by drawing numbers at random. The remaining twelve jurors will have the duty to decide whether (NOA) is guilty or not guilty.

(Last revised June 2012)
[annotation(s) added]

– NJI

For more details on the exact number of jurors selected, see s. 631(2.2).

General Exemptions

(Last revised March 2011)

[1] All jurors must be Canadian citizens. If you are not a Canadian citizen, please come forward.

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1.7 Ability to Hear

(Last revised March 2011)

[1] All jurors must be able to hear what is said in the courtroom. If you have difficulty hearing, please come forward.

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1.8 Understanding the Language of the Trial

(Last revised March 2011)

[1] All jurors must be able to read and understand the language that will be used in the trial. In this case, witnesses will testify and others involved in the case will speak in English/French. Documents written in English/French may be made exhibits.

[2] If you have difficulty reading or understanding English/French, please come forward.

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1.9 Juror Health

(Last revised March 2011)

[1] The lawyers estimate that this trial will last about (specify) but, in reality, nobody knows for sure. It depends on many things. As a general rule, jurors sit each day, from Monday to Friday, from (specify time) to (specify time), with a morning, (and) lunch (and afternoon) break (or, specify). There might be a need to vary this schedule, depending on how the trial unfolds.

[2] Some of you might have health problems that require medical or other treatment. This might make it difficult for you to serve as a juror.

[3] We do not wish to embarrass anyone by asking about personal matters. But if you have a health problem, or if you are in a treatment or therapy program that might prevent you from serving as a juror, please come forward.

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1.10 Personal Hardship

(Last revised March 2011)

[1] Jury service is the most important role that citizens can play in the administration of justice in Canada, and it is the duty of citizens to serve as jurors from time to time. Most people chosen as jurors find jury duty a valuable experience, one that gives them a chance to play a direct part in the administration of justice in their community. If you are selected, jury service will require changes to your daily routine of work, family, religion, education, or leisure activities.

[2] In some cases, jury service may cause exceptional personal, financial or other hardship. If this applies to you, please come forward.

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Specific Exemptions

Familiarity with Participants

(Last revised March 2011)

[1] The charge against (NOA) is:

(Read or summarize applicable part of indictment.)

[2] Every juror must be impartial, which means that every juror must approach the trial with an open mind and without preconceived ideas. He or she must decide the case solely on the basis of the evidence at trial and the instructions on the law from (me) the trial judge.

[3] A person who has or ever had an association with anyone involved in this case might not be able to be impartial, that is, to approach the case with an open mind.

[4] If you have or ever had such an association with anyone involved in the case — for example, (NOA); Crown or defence counsel (identify by name); the witnesses, the investigating officer(s); or (me) the trial judge,[1] or if you have any doubt about it, please come forward. I am now going to ask Crown counsel to read out the names of the witnesses and investigating officers.

– NJI

An instruction that explains how to assess whether the potential juror may be disqualified for familiarity with persons in the trial should include:

Familiarity with the Case

(Last revised March 2011)

[1] This case involves (briefly describe circumstances of offence charged).

[2] If anyone has personal knowledge of the circumstances of this case, please come forward.

– NJI

Selection and Challenges

2.1 Choosing Jurors (No General Challenge for Cause) Note[1]

(Last revised September 2019)

[1] To start jury selection, the clerk will choose (specify number) numbers at random, then read them out loud. If your number is called, please come forward and stand where shown by court staff.[2]

[2] I may ask you to stand aside. If that happens, you may or may not be a juror in this case. Sometimes, a lawyer (or the person charged) will challenge a prospective juror for cause.[3] If that happens to you, I will decide whether or not you should be excused. If you are not asked to stand aside, and are not challenged, you will become a juror in this case.

There are many reasons why you might be asked to stand aside, or might be challenged. If that happens, please do not be offended. Do not feel embarrassed if you are not selected. Do not take it personally. It is a normal part of jury trials.

[3] If I do ask you to stand aside, you will remain in the pool of prospective jurors. As such, you may be called forward a second time, or you may be excused after the jury has been selected.

[1] When selecting more than one jury at a time, this instruction may require some modification. It should be given only where there is no general (as opposed to an individual) challenge for cause. Where there is a general challenge for cause, Preliminary 2.2 should be given.

[2] At present, there is some uncertainty over the procedure to be followed under the new legislation. Section 635(1), as amended, reads as follows:

Order of challenges

635 (1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror for cause, and after that the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration.

Prior to amendment, this provision governed the order of peremptory challenges as well as challenges for cause. Now that peremptory challenges have been abolished, the only basis on which counsel can challenge a prospective juror is challenge for cause under s. 638 of the Code. In some cases, the judge will authorize a challenge to all prospective jurors based, for example, on race or publicity. In that instance, section 2.2 of these instructions will apply. However, s.638 also contemplates that an individual juror may be challenged for cause on the delineated grounds. This has traditionally been a rare occurrence, perhaps because counsel have had access to peremptory challenges.

The question is whether the use of the word “shall” in s. 635(1) requires that counsel be called upon to indicate, for each prospective juror, whether there is a challenge for cause under s. 638 of the Code. Or does it suffice for counsel to simply advise if and when any such challenge arises? Does the prospective juror look at the accused and the accused look at the juror as in the past? Does that serve any purpose in the absence of peremptory challenges? Do counsel have the right to make submissions on whether a prospective juror is stood aside? The precise parameters of counsel’s participation in the new process have yet to be determined. We anticipate that case law will develop as cases unfold, and we will update these instructions accordingly.

[3] The law is clear that a challenge for cause relating to partiality must be based “on a ground sufficiently articulated in the application” that there is in the case of some potential jurors a “realistic potential for . . . partiality” (R. v. Sherratt, 1991 CanLII 86 (SCC), [1991] 1 S.C.R. 509, at p. 536). Where the issue is partiality, the application will likely be aimed at the jury panel as a whole, based on such factors as the race of the accused or pre-trial publicity. The law does not presently contemplate individual challenges for cause based on partiality. If a prospective juror presents with obvious partiality (such as knowledge of participants), the prospective juror may be excused under s. 632 of the Code.

Other bases for challenge for cause concern citizenship, criminal convictions, physical ability, and facility with language (s. 638). It is conceivable that an individual juror might be challenged on one of these bases, though such events would likely be rare. Therefore, while this instruction refers to the possibility of an individual challenge for cause, we do not contemplate that this will be a common occurrence.

– [ NJI]

Challenges for Cause

2.2 Challenges for Cause – Procedure Note[1]

(Last revised September 2019)

[1] It is fundamental that a fair, impartial, and unbiased jury try any person charged with a criminal offence. As part of the jury selection process, each prospective juror will be asked (a) question(s) about whether (e.g., publicity, notoriety, bias) would affect their ability to judge (NOA) impartially. This is called “challenge for cause.” Here is what will happen. [2] The clerk will select the numbers of ______(e.g., 20) potential jurors, who will come forward when their numbers are called. They will be asked one by one to enter the witness box, take an oath or affirmation,[2] and answer (a) question(s). The question(s) will not pry unduly into your privacy. Each person will be asked the same question(s). [3] On the basis of the answer to the question, I will decide whether the prospective juror is acceptable or not acceptable. The question is whether the prospective juror has opinions about the case that they cannot set aside and that would prevent them from reaching a verdict based solely on the evidence at trial. An acceptable juror is a person who would likely approach jury duty with an open mind and decide the case solely on the evidence given at trial and the legal instructions given by the trial judge. A person who is not likely to approach jury duty in that way is not acceptable. [4] If I determine that a prospective juror is not acceptable, that person will be excused. If I determine that a prospective juror is acceptable, that person will become a juror.

[1] According to s. 640(2), the judge may order the exclusion of all jurors, sworn and unsworn, from the courtroom if necessary to preserve the impartiality of the jurors. An exclusion order can be requested by the accused or the prosecutor, or can be made on the judge’s own motion.

[2] Note that in some jurisdictions prospective jurors are not asked at this stage to take an oath or solemnly affirm.

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Conclusion of Selection

2.5 Concluding Instructions to Jury Panel Note[1]

(Last revised June 2012)

[1] Jury selection will continue until twelve jurors[2] [and (one to two) alternates] have been chosen. Then we will take a short break. Court staff will show you to the jury room. At that time, you may contact your families and employers to tell them you were selected as a juror. We will then continue the trial (or specify).

[1] This may have to be modified in situations where the trial is delayed by preliminary motions.

[2] These instructions will have to be modified if an order is made pursuant to s. 631(2.2) of the Criminal Code for the selection of thirteen/fourteen jurors.

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